Citation Nr: 0720914
Decision Date: 07/13/07 Archive Date: 07/25/07
DOCKET NO. 05-14 859 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for prostate cancer.
2. Entitlement to service connection for skin cancer.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. B. Cryan, Counsel
INTRODUCTION
The veteran had active service from October 4, 1946 to
October 3, 1949 and from October 29, 1949 to August 31, 1969.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a November 2002 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas,
that denied entitlement to service connection for prostate
cancer and skin cancer, both claimed as due to in-service
exposure to ionizing radiation.
Prior to certification of the case to the Board, the veteran
developed bladder cancer and subsequently claimed service
connection for such. In a July 2004 rating decision, the RO
granted service connection for bladder cancer on a
presumptive basis, given that the veteran had confirmed
participation in Operation GREENHOUSE in 1951 - a radiation
risk activity. The veteran has been in receipt of a
schedular 100 percent rating for the service-connected
bladder cancer since April 14, 2004.
The veteran testified at a personal hearing before a Decision
Review Officer (DRO) at the RO in July 2005. A transcript of
his testimony is associated with the claims file.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran asserts that service connection is warranted for
prostate cancer and skin cancer, claimed as due to in-service
exposure to ionizing radiation. Participation in Operation
GREENHOUSE in 1951 has been confirmed; and the medical
records confirm a diagnosis of squamous cell carcinoma of the
anterior neck in June 1999 and prostate cancer with radical
prostatectomy performed in October 2000. Unlike bladder
cancer, for which service connection was granted on a
presumptive basis, the diseases of prostate cancer and skin
cancer are not subject to the presumption of in-service
incurrence. See 38 C.F.R. § § 3.307, 3.309.
Pursuant to 38 C.F.R. § 3.311, when a claimant contends that
a radiogenic disease, which first became manifest after
service though not to a compensable degree within any other
applicable presumptive period, is the result of exposure to
ionizing radiation in service, an assessment is made as to
the size and nature of the radiation dose. 38 C.F.R. §
3.311(a). A "radiogenic disease" means a disease that may be
induced by ionizing radiation, and includes skin cancer. 38
C.F.R. § 3.311(b)(2).A claim for service connection based on
38 C.F.R. § 3.311 is a unique type of service connection
claim, and that pursuant to that regulation, VA must furnish
special assistance to the appellant as provided for in the
regulation. Hilkert v. West, 11 Vet. App. 284 (1998).
In cases based on radiation exposure, a request for dose
information will be made to the Department of Defense in
claims based on atmospheric nuclear weapons test
participation, and in claims based on participation in the
American occupation of Hiroshima or Nagasaki, Japan, prior to
July 1, 1946. In all other claims involving radiation
exposure, records concerning the veteran's exposure to
radiation will be forwarded to VA's Under Secretary for
Health for preparation of a dose estimate. 38 C.F.R. §
3.311(a)(2)(i-iii).
Thus, as part of the development of the veteran's claim, a
reconstructed dose estimate from the Department of Defense's
Defense Threat Reduction Agency (DTRA) was obtained in 2004,
to determine the veteran's likely amount of exposure to
radiation.
In accordance with proper procedure, the case was then sent
to the Under Secretary for Benefits, and subsequently
referred to the Under Secretary of Health for an opinion as
to whether service connection was warranted for the claimed
disabilities based on the reconstructed dose estimates. In a
February 2005 opinion, VA's Under Secretary for Health
determined that the radiation dose of this veteran was not
high enough to warrant service connection for prostate cancer
or skin cancer, and as such, the RO denied the veteran's
claims.
The veteran asserts that he is entitled to an updated
reconstructed dose assessment, claiming that the initial
assessment was underestimated.
In fact, at the close of 2006, DTRA began providing worst
case doses specifically for prostate cancer and skin cancer
that were higher than previously estimated. Thus, a remand
is required in this case so that the veteran's dose
assessment can be reconstructed.
Accordingly, the case is REMANDED for the following action:
1. Request that DTRA provide a new
reconstructed radiation dose estimate for
the veteran, who was a participant in
Operation GREENHOUSE in 1951. The DTRA
should clearly indicate that the
reconstructed dose estimate was calculated
using the most current methodology.
2. After obtaining a reconstructed dose
estimate, refer the claim to VA's Under
Secretary for Benefits for an opinion in
accordance with 38 C.F.R. § 3.311(c), and
any additional development deemed
appropriate pursuant to 38 C.F.R. § 3.311.
3. Then, complete any additional
indicated development and readjudicate the
claims of entitlement to service
connection for prostate cancer and skin
cancer claimed as due to exposure to
ionizing radiation. If the determinations
of the claims remain unfavorable to the
veteran, issue a Supplemental Statement of
the Case and provide the veteran an
appropriate period of time to respond
before this case is returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).